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Friday, July 08, 2005

Copyright in characters

About twenty-five years ago I wrote two television scripts for an American producer called Sheldon Reynolds.

Reynolds at that time either owned or controlled the copyright in Conan Doyle's famous character Sherlock Holmes. The precise nature of Reynolds's involvement is obscure; there was eventually a court case about it. The online account of this case seems to have been recently removed, but the Google cached version may still be available when you read this. Should you care enough to bother.

Anyway, in the 1970s Reynolds seems to have exploited the Conan Doyle copyright to the full. Scarcely a week went by without a Sherlock Holmes meets Dracula (or some such)film or novel coming out.

When I knew Reynolds he was preparing to film a series of 26 half-hour episodes featuring the great detective. I adapted one of the Holmes stories -- The Speckled Band -- and wrote one other original script. The series was then filmed in Warsaw, presumably because costs were lower there.

The point about this is that no one in those days seems to have questioned the claim that use of the character Sherlock Holmes was protected by the Conan Doyle copyright. The copyright was in fact about to expire, fifty years after Conan Doyle's death, and quite a few people were reportedly preparing to make use of the character for free, after the expiry. (The copyright was later revived when English law extended the copyright period to seventy years after an author's death.) But, I repeat, no one doubted that he who controlled the Conan Doyle copyright could also say yea or nay to the further use of the character Sherlock Holmes.

Well, if you're a regular reader of this blog you will know that at least one UK expert on copyright takes a different view -- at any rate under English law. I referred only the other day to an article by Nicola Solomon, which is available online. And Ms Solomon clearly takes the view that anyone can use a character for a sequel, without permission and without paying a fee, subject to a few simple precautions.

Ms Solomon's first sentence seems pretty unambiguous to me: 'One might assume that it would be an infringement of copyright to use characters and style developed by another person. Not so; copyright protects the words and form in which ideas are expressed, not the ideas or characters themselves.'

What I want to do today is draw attention to a case where this question of the right to use characters in a sequel or spinoff work may turn out to be of considerable significance. And it may also turn out to be a bonanza for the lawyers of this sceptred isle.

Booktrade info provides a link to a news item on a James Bond web site, known as Commanderbond.net. This reveals that there is to be a trilogy of books, published by the ancient firm of John Murray, no less, entitled The Moneypenny Diaries. These will be, or purport to be, the diaries of that very same Miss Moneypenny who served as secretary to James Bond's boss in the original novels by Ian Fleming. The first book is due out on 10 October.

There is no mention yet, I notice, of publication in the US, or anywhere else, where the laws will probably be different. Though whether, in these days of online booksellers, that makes any practical difference at all, I wouldn't care to say. You can already find the UK publication listed on the German Amazon site.

Commanderbond.net claims that, when they first heard about these books, they approached Ian Fleming Publications (IFP), the company which controls the literary rights in Fleming's work, for further details. And, when asked about the books, IFP denied all knowledge; they said, however, that they would look into the matter.

Commanderbond.net suggests that this denial might, perhaps, have been IFP 'playing coy' -- but suggests no reason why they should do so. And The Moneypenny Diaries, they add, could be the first in a series of 'new promised projects from the heirs of Ian Fleming.'

In search of clarification, I turned to the official IFP web site, on which, so far as I can discover, there is no mention of Ms Moneypenny or her trilogistic diaries.

Under the FAQ page on the IFP site there is, however, a warm-hearted and encouraging statement, as follows:

How can I get my James Bond novel published?James Bond novels and short stories may only be published under licence from Ian Fleming Publications Ltd. We do not accept unsolicited material and it is company policy to return any such material unread.

So, the question is this. Have John Murray and their author, Kate Westbrook, come to an agreement with the owners of the Fleming copyright or have they not? And, if they have not, will IFP test the matter in the English courts?

This question is one of considerable importance. There are a number of UK companies which make millions of pounds a year from exploiting the copyrights of famous authors: Chorion being perhaps the most famous. Such companies are not going to be happy if someone sets a precedent proving that, under English law, anyone can use their precious characters in a sequel or spinoff without paying them a share of the proceeds.

Well, it shouldn't be long before we know the answer. If The Moneypenny Diaries is part of the official IFP package, IFP will doubtless be plugging the trilogy on their web site, on or before publication date.

And if the opposite is true, and a court case ensues, that can't possibly take longer to resolve than, oh, two or three years.

4 comments:

The whole question of copyright is being radically affected by today's communications technology, principally the Web.

I know that Your Grumpiness addressed the issue at length some time ago, but I would suggest that it might yet merit further comment.

Copyright came into being centuries ago to protect writers against the outright pirating of their work. Unfortunately, the law has since then sprouted wings, and flown to places never envisaged by those who first framed it.

The present position is that, outside a critical or academic context, virtually any quotation of any work still in copyright, be it (as they used to say) never so brief, is likely to cause problems.

There exists (and I'm sorry I can't give the reference) a poetry website which, for fear of legal repercussions, refuses to allow the quotation of more than one line of any poem still in copyright. And far from being extreme, this is typical.

This cannot make sense. Virtually any writer should be delighted to be quoted at length by virtually any other writer, provided only that the quotation is accurate and is correctly attributed. Writers should stop being so bloody precious, and lawyers should stop being so bloody greedy.

As for copyright in characters, my feelings are mixed, but my guess is that the Web has opened the floodgates, and rendered irrelevant the sticking of fingers in dikes.

Copyright law has, to be sure, become not only indecipherable but useless. To re-quote Mr. Solomon, "...copyright protects the words and form in which ideas are expressed, not the ideas or characters themselves."

In truth, however, copyright now protects everything and nothing at all. Paranoia and total license run neck and neck, confused by ten thousand books and websites explaining the same thing differently.

I don't know enough about UK copyrights to agree or disagree with Ms Solomon's assessment of law there.

However, in the US, while here, too, copyright protects the expression of ideas and not ideas themselves, there is case law that has interpreted the law to protect the use of characters. In the US the use of the character would be considered a "derivative work" and only the copyright holder has the rigth to create a derivative work. I guarantee you that Disney believes this or they would not have gone to such an effort to extend the copyright law another 20 years to protect Mickey.

The whole issue is moot in the UK related to Sherlock Holmes because Doyle's Sherlock Holmes storie are now in the public domain the UK.

In the US all of the Sherlock Holmes stories EXCEPT those in the Casebook are now in the public domain. (The Casebook was just about to fall out of copyright when the Bono Act extended it another 20 years.)

This leaves an ambiguity. If the stories which defined the character are partially in and out of copyright can you create a story based onthe character and claim you are basing it only on the public domain stories?

Of course, you can claim that but would you win in court? I don't think anyone can answer that question at the moment because no court has ruled on it.

Regarding the missing website: It is still around. They just moved it to a different domain, possibly due to the ongoing battles over the copyrights. You see, the website that you refered to does not tell the whole story. It merely tells the claims of Mrs. Andrea Plunket, ex-wife of Sheldon Reynolds.

Most Sherlockians acknowledge Jon Lellenberg as the appropriate representative of the Doyle estate. He repesented Dame Jean Conan Doyle (the last of Doyle's children to die) and now represents her estate. (Go here and search on Arthur Conan Doyle:tyler.hrc.utexas.edu )

I think you are attributing the publication of some pastiches to Reynolds or Plunket which were authorized by Dame Jean through Lellenberg. The books authorized by Dame Jean or her estate say so.

There have been ongoing legal battles between these two sets of supposed representatives. However, the end result seems to be that both have some claim.

Many people don't seem to understand that if two people jointly own a copyright EITHER can authorize publication and NEITHER can prohibit any publication authorized by the other. That's a fact of US Copyright law.

In this case the parties claim their rights under different children of Conan Doyle.

Actually the person to blame for the mess is probably Sir Arthur himself. He obviously wrote his will without adequate legal advice. (I have a copy in front of me.)

If all the children and all the children's spouses and heirs had gotten along then there would not have been a problem. But you can't count on that. He should have put the copyrights in a trust, named an institution the trustee, and named his wife and children the beneficiaries. Then there probably would not have been 75 years of arguments and litigation.

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